Michigan Court of Appeals Reverses Resisting Police Conviction

On September 23rd, 2014, the Michigan Court of Appeals reversed a jury's verdict finding a woman guilty of resisting police and "making or exciting any disturbance or contention" because the "making or exciting any disturbance or contention" statute is unconstitutionally overbroad under the First Amendment.  As a result, the woman at issue did not resist a lawful arrest because "the expression of ideas may not be prohibited merely because those ideas are offensive."

In People v Vandenberg, Docket No. 314479, the Michigan Court of Appeals addressed the constitutionality of the "making or exciting any disturbance or contention" statute, as well as the issue of whether the woman's speech and conduct at issue was criminal under Michigan's resisting arrest law. 

The Court first recited the facts of the case.

According to the evidence introduced at trial, defendant went to the 58th district court in Hudsonville, Michigan to pay a traffic ticket. Rather than simply pay the ticket, when defendant approached the clerk’s window, she proceeded to read a statement regarding the [']need for autonomy['] and her [']frustration['] at having to pay a ticket when, from defendant’s viewpoint, the fine had been demanded by [']threat or force.['] Defendant’s brother, who had accompanied defendant to the courthouse, videotaped defendant’s activities in contravention of posted signs prohibiting the use of cameras. The clerk grew [']nervous['] as a result of defendant’s behavior, and a deputy present at the scene told defendant’s brother to stop recording. Defendant then attempted to read her statement to the deputy. Thereafter, when a supervisor came to the clerk’s window, defendant attempted to pay her ticket with 145 single dollar bills which she had defaced with black and red marker. Following the directions of the deputy, employees refused to accept the defaced bills. According to the clerk and her supervisor, defendant then grew [']very agitated['] and became [']argumentative.['] A bystander in the building testified at trial that defendant began to make a [']big scene['] and [']started exploding,['] meaning that defendant was [']just being loud.[']

The deputy asked defendant to leave, and other officers arrived to help walk defendant to the exit. They created [']a block wall and started walking [defendant] towards the exit.['] According to one officer’s description, defendant [']passively resist[ed]['] by repeatedly stopping and trying to talk to the officers. After defendant had been escorted past security to the building’s vestibule, defendant disobeyed the officers’ instructions to leave the building. At that time, one of the officers informed defendant that she was under arrest. Defendant proceeded to struggle, flailing her arms and later stiffening her arms to prevent officers from handcuffing her. After the officers stunned defendant with a Taser and sprayed her with pepper spray, they managed to handcuff her.

Defendant was tried before a jury for making or exciting a disturbance or contention, MCL 750.170, and resisting and obstructing a police officer, MCL 750.81d(1). At trial, it was the prosecution’s theory, that defendant did not go the courthouse to lawfully conduct business, but that defendant had [']confrontation on her mind['] and that she [']went to the courthouse to create tension and challenge.['] According to the prosecution, defendant [']became more agitated['] when employees refused to accept her money, and she began to draw the notice of passersby. Defendant was, in the prosecution’s view, [']noticeably causing a disturbance in the courthouse lobby . . . [']

The Court's analysis of the propriety of the convictions followed.

On the facts of this case, as in Purifoy, we cannot discern whether defendant was convicted for creating a [']disturbance['] or exciting a [']contention.['] The prosecution argued both that defendant had created a disturbance and that she had excited a contention, and the trial court’s instructions to the jury included reference to both disturbance and contention. A jury instructed in this manner may well have convicted defendant because it determined that her words and actions, though peaceable, were offensive to others and therefore constituted the exciting of a contention. Because defendant’s conviction may rest on an unconstitutional basis, we must reverse and remand for a new trial that shall not involve the [']contention['] portion of MCL 750.170. See Purifoy, 34 Mich App at 321-322 (opinion of LESINSKI, C.J.). See also Terminiello, 337 US at 5 (holding reversal of a conviction required where [']one part of the statute was unconstitutional and it could not be determined that the defendant was not convicted under that part[']); People v Gilbert, 55 Mich App 168, 174; 222 NW2d 305 (1974) ([']When the defendant stands convicted on one of two theories, one of which is permissible and one of which is not, the inability to say for sure on which the conviction rests demands reversal.[']) . . .

In this case, as discussed, the jury instructions and the prosecution’s theory at trial encompassed the erroneous, overly broad premise that exciting any contention constituted a crime. Given these instructions, the jury may have concluded that the arresting officer lawfully arrested defendant because her peaceful expression of ideas gave offense to her listeners. But, an arrest on this basis would be unlawful because the expression of ideas may not be prohibited merely because those ideas are offensive. See Leonard, 477 F3d at 360-361 (recognizing that the mere advocacy of an idea cannot support a conviction and it cannot create probable cause for arrest). Because defendant’s conviction for resisting and obstructing a police officer may be premised on resistance of an unlawful arrest, reversal of her conviction, and remand for a new trial, is warranted. See Gilbert, 55 Mich App at 174.

Reversed and remanded for a new trial. We do not retain jurisdiction.